IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROMULUS LOUIS NEDEA, 

Petitioner, CASE NO. 2:12-CV-821

JUDGE ALGENON L. MARBLEY

v. MAGISTRATE JUDGE KEMP

HOCKING CORRECTIONAL 

FACILITY, WARDEN, 

Respondent. 

OPINION AND ORDER

Petitioner Romulus Louis Nedea filed this petition for a writ of habeas corpus pursuant to 

28 U.S.C. §2254 on September 7, 2012, asserting that he was being held in custody in violation of

the Constitution of the United States based on a 2006 decision of the Ohio Adult Parole Authority

denying his request for parole. Petitioner is currently serving a sentence imposed by the Lucas

County Court of Common Pleas in 1970. In a Report and Recommendation filed on September 17,

2012, the Magistrate Judge, noting that petitioner had previously challenged both his conviction and

the parole denial in federal habeas corpus actions, recommended that the case be transferred to the

United States Court of Appeals for the Sixth Circuit for authorization for filing as a successive

petition. Petitioner has filed a timely objection to that recommendation, which the Court reviews

de novo. See 28 U.S.C. §636(b)(1)(B).

Petitioner does not contest the fact that he has filed other federal habeas corpus cases

challenging his continued imprisonment. However, he argues that the recommendation to transfer

the case to the Court of Appeals as a successive petition, which was based on 28 U.S.C. §2244(b),

a provision of the Antiterrorism and Effective Death Penalty Act, is improper because that Act does

not apply retroactively in non-capital cases. It appears to be petitioner’s position that because he

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was originally sentenced in 1970, the Act cannot be applied to him

Petitioner misunderstands the law and the cases which hold that the AEDPA does not apply

retroactively in non-capital cases. The cases he cites do not hold that the AEDPA does not apply

in non-capital cases where the conviction was obtained prior to the enactment of the AEDPA, which

occurred on April 24, 1996. In Boria v. Keane, 90 F.3d 36 (2d Cir. 1996), the issue was whether the

AEDPA’s new standard of review - that a writ could not be granted to a petitioner being held in

custody pursuant to a state court decision which was neither contrary to, nor an unreasonable

application of, clearly established federal law - applied to a case which had been filed before the Act

was signed into law. The Court of Appeals held that the Act was not intended to apply to noncapital habeas corpus cases which were pending on the date of its adoption. Here, however, the case

which Petitioner just filed was not pending on April 24, 1996, so Boria is inapplicable. The same

is true of Gentry v. Trippett, 956 F.Supp. 1320 (E.D. Mich. 1997), aff’d --- Fed. Appx. ----, 173 F.3d

855 (6th Cir. Jan 27, 1999), a case which dealt with the successive petition provision of the Act, and

which held only that this provision did not apply “to habeas petitions filed before April 24, 1996.” 

 Id. at 1324. Again, the instant petition was not filed before that date. 

The correct rule dealing with applicability of the AEDPA is stated in Barker v. Yukins, 199

F.3d 867, 871 (6th Cir. 1999) as follows: “It is now well settled that AEDPA applies to all habeas

petitions filed on or after its April 24, 1996 effective date.” That is not a retroactive application of

the Act, but a prospective application. The Court of Appeals has consistently applied the AEDPA,

and specifically the “gate-keeping” provision found in §2244(b), to second or successive petitions

filed after the effective date of the Act even if the conviction and the first petition both pre-dated its

enactment. See, e.g., Buell v. Anderson, 48 Fed. Appx. 491 (6th Cir. September 24, 2002); see also

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In re Byrd, 269 F.3d 561 (6th Cir. 2001). This Court must do likewise.

For these reasons, Petitioner’s objection (Doc. 7) to the Report and Recommendation (Doc. 

3) is OVERRULED and the Report and Recommendation is ADOPTED AND AFFIRMED. This

case is TRANSFERRED to the Court of Appeals for the Sixth Circuit for a determination of

whether Petitioner may file it as a successive petition. 

IT IS SO ORDERED.

 s/Algenon L. Marbley 

ALGENON L. MARBLEY

United States District Judge

DATED: November 27, 2012

 

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